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The Anti-Apartheid Principle in American Property Law

Recently, many federal courts have been interpreting civil rights laws to allow racially discriminatory treatment of customers in retail stores and racial and religious harassment of tenants and home owners by their neighbors. These courts are misinterpreting federal law and ignoring the will of Congress embodied in the Civil Rights Act of 1991 which clarified that market participants have the right to enjoy property and contract rights on equal terms. More important, these courts are wrongly assuming a background norm of negative liberty; they presume that we are free to engage in racial discrimination in market transactions unless statutes clearly and unambiguously limit our freedom. But this is a mistake.

Since the 1960s, the background norm has become a presumption that market participants are not allowed to treat people unequally because of race, religion, sex, or disability. Both federal and state statutes embody this norm and many statutes contain it explicitly. Even the Civil Rights Act of 1866 was amended in 1991 to provide that private persons are entitled to equal contract terms. We aspire to be a free and democratic society that treats each person with equal concern and respect. We now understand that this commitment not only entails the repudiation of feudalism and slavery but the abolition of apartheid, whether imposed by law or enacted by private persons exercising their property rights. Liberty does not mean the absence of restraint on action; it means the creation of a legal infrastructure of a free and democratic society.

Equal access to the marketplace without regard to race is now as fundamental a norm as is the abolition of feudal tenures. For this reason, the common law should be interpreted to include a background assumption that prohibits racial discrimination in housing or public accommodations. Unless statutes affirmatively grant stores the right to treat their customers differently on account of race, courts should presume that they have no such right. Unless statutes affirmatively grant individuals the right to harass their neighbors on account of race or religion, courts should presume that housing rights include the right to be free from such discriminatory harassment. Rand Paul was wrong to suggest that liberty demands freedom to reject customers because of their race; the very opposite is true. American property law now contains a fundamental anti-apartheid principle that ensures access to the marketplace without regard to racial discrimination and the federal courts should start acting on that foundational commitment.